Orin Kerr took Radley to task for his rhetoric and carefully reviewed the federal judge's order. The investigation may be bungled, Orin argues, but all the judge really did is find that an officer can rely on a positive field test for drugs in establishing probable cause, at least when the officer didn't know that such field tests are notoriously inaccurate.

Radley's perfectly right to be outraged. And Orin's perfectly right to note that Radley's outrage is directed at a feature, not a bug, of the system. Law enforcement has become increasingly bureaucratic, in the sense that actors are insulated legally and politically from the consequences of their actions, and those actions are treated as dictated by circumstance rather than chosen by accountable humans.

Consider, to start, the utter lack of accountability for taxpayer money displayed in this case. The whole case arise from "Operation Constant Gardener," a Sheriff's initiative to conduct marijuana cultivation raids on April 20th because that date is considered an "unofficial holiday among marijuana users." One officer was tasked to sit in the parking lot of a hydroponics store and take down license plates and pass those plates along to another law enforcement agency in a custom-made spreadsheet. Another officer matched those plates to individuals and addresses, and another officer evaluated which addresses to visit. Having chosen a suspect and an address, two other officers visited three times to root through the trash and look for evidence. Those two officers brought the "plant material" they found to a supervisor, in part because it was "hard to identify," to solicit his input. Upon a false positive "field test" for marijuana (though the material was actually tea), an officer drafted a search warrant, a deputy prosecutor reviewed and approved it, and seven law enforcement officers conducted an armed raid on the suspect's house. When the seven officers could not find evidence of marijuana cultivation, they extended the search for a couple of hours in an effort to find personal use amounts of marijuana. They found none. The Sheriff's Office later conducted a press conference bragging of the success of Operation Constant Gardener, presumably referring to other raids.

How much did all of that cost the taxpayers? Tens of thousands of dollars, at least. Was it worth it? Would it have been worth it even if law enforcement had found a private-residence-sized marijuana grow at the house? That's not a question you'll hear asked. The War on Drugs means never having to say "sorry I wasted your money." Certainly nobody who's paid to sit in a parking lot taking down license plates, or paid to raid trash cans and squint (quite literally) at tea leaves, or paid to devise cleverly-named gestures of defiance at marijuana users and then give press conferences about it, will ever ask that question. Financially, law enforcement is unaccountable.

They're also unaccountable in terms of basic competence. There was no incentive for the officers to learn, and know, that field tests are unreliable. What does it matter to them? They get paid whether or not they're reliable, paid whether the search turns up marijuana or tea. Moreover, they're insulated from any civil liability for relying on junk science. Nor do they have any incentive to conduct corroborating investigation. The officers here could have subpoenaed the house's electrical bills to watch for unusual consumption, a tell of indoor marijuana cultivation. They could have investigated whether the house has unusual foot traffic, or whether there had been any tips about the homeowner selling drugs. Faced with hard-to-identify plant material, they could have sent it to the crime lab for a test — after all, they had already waited seven months after the initial sighting of the suspect at the hydroponics store. But why do any of those things? The bar for probable cause is set extremely low — low enough that a visit to a hydroponics store and a questionable field test result on a small amount of leaves clears it. The small amount of leaves in the trash is consistent with mere personal use of marijuana, and some would argue that a seven-officer armed raid is a disproportionate use of law enforcement force to investigate such use, but nobody's asking about proportionality and nobody's being held accountable for the lack thereof. Why not just phone in your investigation, shrug at the result, and show up for a time-and-a-half raid on the dude's house? If a hypothetical officer could objectively conclude that there's enough evidence for probable cause, why give a shit about whether the person really did it or not?

When seven armed agents of the state raid your home at gunpoint in front of your spouse and young kids, it is traumatic. But arguably the homeowner should feel relieved that nothing worse happened. The officers didn't shoot the kids' pet dog, or mistake the X-Box controller in somebody's hand for a gun and shoot them, or stumble on a step and shoot someone, or shoot the homeowner when he reacted to what he might have thought was a home invasion robbery. The officers were relatively low-key — only seven officers, only one AR-15, no flashbang grenades thrown into a baby's crib to soften the place up first. Lucky! If any of those things had happened, it's likely that the officers would not have been accountable for it. The law usually doesn't hold them accountable for such "mistakes" in the course of a raid. And nobody even talks about holding them accountable for making the decision to conduct an armed raid on an occupied dwelling — a raid in which deadly mistakes are a distinct possibility — based on the aimless, good-enough-for-government-work suspicion that maybe they're growing pot in there. Nobody's asking whether the game is worth the candle — whether the known risk to lives is justified by the ends of the War on Drugs.

Nobody asks those questions because it's a bureaucracy, and you don't ask such questions in a bureaucracy. Asking questions might make you accountable, and the whole point of the law enforcement edifice is to insulate actors from accountability and to separate cause from effect. Someone chooses to harass marijuana users on April 20 to make a point and someone decides that you can find marijuana users shopping at hydroponics stores and someone decides that a field test of an unknown substance is good enough and someone decides to get a warrant and a family winds up held at gunpoint in their own home for drinking tea. These events are treated as if they are disconnected; nobody stops to say "the end result of this will be a man prone on the floor under the barrel of an AR-15 in front of his children, so act accordingly." Nobody's responsible, say the police. It just happens. I just work here.

Comments

i notice that in your entire missive, you dared not consider the children. so clearly that means you're wrong. thinking of the children* automatically trumps any so-called "logic" or "common sense" or "no i'm not ruining thanksgiving, you are, vivian, i am having a perfectly pleasant conversation about why miscegenation is biblically unsupported."

*excludes the following children: suspected criminals; suspected associates of suspected criminals; relatives of suspected criminals; suspected relatives of suspected criminals; people that may have been coincidentally proximal to suspected criminals.

"They're also unaccountable in terms of basic competence. There was no incentive for the officers to learn, and know, that field tests are unreliable. "

Brady v. Maryland (373 U.S. 83 (1963))? There's your incentive for them to learn and know that field tests are unreliable. Right there.

More to the point. the incompetence and lack of accountability began when someone decided to park a cop in the parking lot of some business and troll for customers to that business looking for drug activity absent any evidence it was even going on in the first place.

Parking a cop at a legitimate business and trolling for customers' licenses? That implicates the First Amendment, thank you very much. National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958)

Here's the thing I've noticed about this particular case. Tea smells. Tea smells strongly of… tea. Why test the tea, which clearly and obviously smells like tea, and probably also looks like tea, unless you intend to lie about it?

Bureaucracy is wonderful. The guys writing the laws about loosies in NYC probably never thought about Eric Garner getting choked to death, either, even though they depend upon potentially lethal force in order to uphold the law.

I dunno about the issue of taxpayer money, since civil asset forfeiture can be so lucrative for law enforcement agencies. They might well have generated revenue if the other raids weren't busts (or, um, were busts).

Remove immunity for law enforcement officials top to bottom, and make them carry malpractice insurance. They want to be called "professionals," they should be liable like them.

This immunity thing is ridiculous. If I file someone's mediocre slip-and-fall case a day late, I'm looking at a huge malpractice claim. If I mail a personal letter with a 50-cent stamp bought with funds out of my trust account, I'm looking at losing my license. But bungling cops and an overzealous district attorney can railroad someone into prison or even the electric chair – literally using the power of our justice system to murder someone – and suffer no penalty whatsoever. We shrug our shoulders and say, "immunity".

Removing immunity and making law enforcement personally liable (but offering/requiring insurance); fixing accountability is literally as structurally simple and politically impossible as that.

The Fourth Amendment seems to have expired. Decisions like this one (and the recent fiasco of the error-prone drug-sniffing dog) make it clear the police aren't concerned about probable cause as much as probable-cause generators.

And yes, secrecy is the handmaid of accountability. The Hartes were wealthy enough to force a release of the documents relating to their raid, but even requests to police departments for simple public documents now require FOIA submissions, and certain police departments routinely reject, delay or attempt to price those requests beyond reason.

Nothing good ever happens in that kind of informational vacuum — least of all accountability.

Even if the homeowner was seeking hydroponics for the reason behind the raid, and I'll admit that I'm definitely not versed in the following line of work*, I would think unused marijuana plant material would make better compost than trash.

*Resident of a state with recreational use and growing currently legal

Parking a cop at a legitimate business and trolling for customers' licenses? That implicates the First Amendment, thank you very much.

Unless the city is blanketed with ALPRs and the machines troll all businesses for customers' licenses. Then the First Amendment seems to protect the ALPRs owners, and the police just have to come up with an excuse to justify searching the DB using a really broad query and can then dig anything they want out of the results.

Remove immunity for law enforcement officials top to bottom, and make them carry malpractice insurance. They want to be called "professionals," they should be liable like them.

I don't agree on this. The impunity of bureaucrats, whether governmental or corporate, largely stems from indemnification for attorney fees and damage awards resulting from their torts. If the bureaucrat does not have to pay, then they have little incentive to behave properly.

For that reason, I've favored for many years a ban on indemnification, at the very least when the torts are intentional but preferably for negligent acts and omissions as well. If the bureaucrats face personal liability for damages and attorney fees without hope of indemnification, then they acquire a strong incentive to question the orders they receive.

A subsidiary reason for not requiring insurance of government employees is that if there is such a requirement, then wages will adjust higher to cover the expense of insurance, which can be more efficiently handled by government providing indemnification.

Did the cops even stop to ask themselves why anyone living in a non- legal use/cultivation state would be tossing wet marijuana leaves in the trash? As far as I know, if this poor man was using pot, wouldn't the evidence have been in rather ashy form?

I feel like this story reeks of "parallel construction." Given how hard they fought to keep the reason for the warrant secret I have a sneaking suspicion we'll eventually find the DEA (via the NSA) trolls credit card purchases of hydroponic items and sends them along to local law enforcement.

That's far more believable than writing down license plates for days on end and then searching homes 7 months later.

Since the CULT called the third branch (lawyers and judges) gave the original lessons on how to be immune from accountability, I find it amusing when they cry for immunity to be removed for others so their greedy butts can sue!

How 'bout starting with the festering core of the problem of immunity in general? Disband the cult of the third branch and remove THEIR immunity!

No one should be immune from the consequences of their actions. Why will most lawyers continue to do nothing about the cult? Because they profit from their immunity every single day. Ching, ching. It would save time and money and life minutes invested in typing diatribes and text books, and articles.

I think the person at fault here was the magistrate who authorized the search warrant. The warrant should have failed on both probable cause and particularity. The police should have to show that there is a greater than even money chance that, for instance, X number of plants are within the location to be searched. Here the evidence doesn't seem to go beyond a suggestion that there may have been cannabis in the house at some time in the past.

My understanding is that the magistrate is not even supposed to be a neutral arbiter, but rather an advocate for the person against whom the warrant is issued, as he is not in a position to advocate on his own behalf since normally he does not know that the application has been filed.

Too many judges have seen themselves as part of the law enforcement apparatus, rather than as a separate, and independent bulwark against it.

Too many judges have seen themselves as part of the law enforcement apparatus, rather than as a separate, and independent bulwark against it.

Is there even one judge in the entire country who doesn't?

Unfortunately it only takes one judge who does. He can sign all the warrants.

The only actual restriction on judges signing warrants is that they can't just leave a rubber stamp at their office door. Because it doesn't look good politically if you're pretending to be actually deciding whether the warrant affidavit actually shows probable cause.

re: plant material in the trash – I don't know what the LEOs actually found, and I've never used MJ myself, but I've been around many people who have. Hypothetically, depending on the grade the victims purchased, or whether they are growing, there could be seeds/stems left over that they wanted to discard.

If they were growing, it would either be a lot or none – not a small amount. That's just wrong. That's not how it works. That's not how any of this works.

If they were purchasing cheap weed, it could be literally any amount, because some people try to smoke whatever they are given by a sketchy "dealer", often with amusing results, since the seeds pop don't really help with the content.

But I mean – used tea looks a particular way. Discarded MJ shouldn't look even similar at all. I find this whole thing almost conspiratorially weird.

"The only actual restriction on judges signing warrants is that they can't just leave a rubber stamp at their office door. Because it doesn't look good politically if you're pretending to be actually deciding whether the warrant affidavit actually shows probable cause."

I couldn't find it via google, but there was a case a few years back where a police department was signing all of its own warrants because, they claimed, they didn't realize they even needed a judge to sign them.

On the one hand, I like conceptually parts of the idea of immunity. Because we expect civil servants to serve the public in theory, and sometimes that might conflict with what they want to do, or believe is right. I understand that as a paramedic–I'm expected to put aside personal feelings when treating patients; I'm expected to do my job.

Similarly, a police officer who thinks that, say, drug laws are an awful infringement of personal liberties is still expected to enforce that law. And it would be particularly terrible if someone were enforcing a law they're required to enforce, that they don't agree with, and then a court overturns it on constitutional grounds, and then they're sued for violating constitutional rights. They would have been fired for not enforcing it.

That said, I do think someone should be responsible. Someone should give the "final answer" that makes them responsible for the consequences of it. If there were even that level of accountability, I think it would change things for the better. Imagine if a police commissioner or DA had to say "Yes, this law is constitutional and should be enforced", and could be sued if they were wrong–I imagine they wouldn't want to do that willy-nilly.

In this case, for example, I would think the individual cops checking the license plates didn't really make the decision to go to the hydroponics store–seems more likely it came down to them, or they were told to go to the parking lot of some business and do the license thing, which means it could have been a head shop or a hydroponics shop, but would have been the same scenario regardless. I also think that the person deciding whose trash to root through was probably assigned that task, and I would bet money that whoever had to do the rooting was assigned that task as well. And in the end, the officers who found the plant material went to their supervisor to ask "is this weed?" didn't make the call that it was, either–the supervisor did. I honestly don't think that any of those officers are really responsible, nor would I wish any of them to be sued (assuming I'm right in my assumptions).

But I wish the supervisor was responsible for that decision. If he had been maybe he would have gone up the chain to make, say, the DA responsible for that decision (is this test good enough even if we're wrong?). Maybe he would have just sent it off for better testing in the first place and this would never have happened. There should be consequences if you're wrong and it's your fault you're wrong.

Orrin Kerr usually focuses on the judicial decision and whether the result was permissible under the law. This is correct as a matter of legal analysis, but wrong as a matter of policy. The fact that legal analysis has separated from policy scarcely seems to occur to Kerr, but is very much in the mind of the average person who is more interested in things like fair and reasonable treatment.

>>How do we fucking fix it? How do we incentivize accountability in the police organization and direct resources toward real crimes by which people are actually harmed?

By making the the people to make the decisions and the people who carry out those decisions PERSONALLY responsible. Make them pay out of their own pockets for their screw-ups. This includes hospital bills. Repairs to property. Replacement of items destroyed or taken. Anything and everything necessary to make things whole.

Cops and attorneys who lie or destroy evidence of their misconduct, or misrepresent anything lose their licences and jobs. No arguments. No discussion. No second chances. And in some cases, jail time.

By making the the people to make the decisions and the people who carry out those decisions PERSONALLY responsible. Make them pay out of their own pockets for their screw-ups.

Unfortunately, that is unlikely to happen.

Consider one of the more egregious cases of this decade, the entirely bogus 2006 Duke Lacrosse team rape prosecution. Not only were the defendants factually innocent (not just "not guilty"), but the alleged crime never even happened.

Durham prosecutor Mike Nifong (at the very least) perjured himself, failed to disclose exculpatory evidence to defense attorneys, and framed three people with full police assistance and cooperation for a crime never even happened, To date, the only consequence for any of the bad government actors in the case was disbarment and one day of jail time for Nifong for contempt of court.

@Tim: The police department is, eventually, accountable to the voters. Either you elect a sheriff, or you elect a mayor who appoints the police chief, or something. If your police department is conducting raids on homes with no evidence, get a petition going and get the mayor to appoint a new chief who won't do that sort of thing – and if the mayor won't listen, elect a new one who will.

One might also wonder why, a la David Koresh, they couldn't have raided the house while everyone was out. Presumably anyone involved in a grow op isn't loading up their pot plants to take with them every time they leave. Raid the place, find the pot, swing by the owners' work and arrest him or her.

I understand that it these are infrequent in the overall scheme of things but I worry about what would happen to me if someone were to burst into my home in the middle of the night. Automatic assumption: home invasion. I probably end up dead and possibly a police officer, depending on my reflexes and my immediate availability to the tools of self defense.